### FILED 

### MARCH 26, 2013 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re the Parenting and Supportof: ) No. 30687-9-111 ) AUTUMN KERN, ) ) LISA JAMESON, ) ) Respondent, ) UNPUBLISHED OPINION ) and ) ) DERRICK KERN, ) ) Appellant. ) KULIK, 1. - When creating a residential schedule, atrial court considers seven statutory factors, which include theparents' work schedules. RCW 26.09.187(3)(a). The trial courthererejected DerrickKern'sproposedresidential schedule for his daughter, Autumn. The court ordered a more traditional schedule andprovidedthatMr. Kern could have a three-day visit every month ifheusedpaidtime offto accommodate it. Onappeal, Mr. Kern arguesthe court abused its discretion by failing to considerthe seven statutory factors andby requiring himto use his paid days offfor additional visitation. We conclude thatthe trial court did not abuse its broad discretion, andwe affirm the court'sNo. 30687-9-III In re Parentage of Autumn Kern
order. FACTS Lisa Jameson and Derrick Kern have a daughter, Autumn, born in 2005. Ms. Jameson and Mr. Kern never married. They had an "on-againloff-again"relationship for several years and broke up for good in early 2010. Report ofProceedings (RP) at 15. In the summer of201 0, Ms. Jameson petitioned for a final parentingplan in which she was theprimary residential parent. Before trial, Mr. Kern indicatedthathe wanted to be the primaryresidential parent. However, he agreed at trial that Ms. Jameson shouldbe the primaryresidential parent. A. Evidence at Trial Attrial, theparties presented evidence on the seven statutory factors that the trial court must consider when deciding residential provisions. I They presentedthe following evidence on each factor: 1. The agreements ofthe parties, provided they were entered into knowingly and voluntarily Both parents testified that they had beenunable to agree on any provisions ofa final parentingplan.

2No. 30687-9-111 In re Parentage of Autumn Kern
2. Each parent's employment schedule Mr. Kern testified that he worked full time as a firefighter. He worked only nine days permonth. He worked those days in 24 hour shifts, followed by 48 hours off, in a cycle thatrepeated itselfevery three weeks. In addition to his regular days off, he had threeweeks ofvacation and 13 "Kelly days" peryear. Kelly days are paid days off. He testified that he was not proposingthat the court use the Kelly days in the residential schedule, but that he was willing to use those days to make himselfavailable for Autumn. He also testified that he could trade days offwith co-workers. Ms. Jameson testified that she worked full time, but had a flexible schedule. She could usually come and go from her work freely and could work from home. 3. The wishes ofthe parents 

### Mr. Kern proposed a schedule based ontheir temporary residential schedule at the time oftrial. Both schedules divided residential time nearly equally and werebased on 

### Mr. Kern's work schedule. The proposed schedule followed athree-weekrotation that paralleled Mr. Kern'swork schedule, which meantthatMr. Kern would not see Autumn
on the same days every week.

I See RCW 26.09.187. 3No.30687-9-III In re Parentage of Autumn Kern
In the temporary schedule, there was also a time every month whenAutumn did not see Mr. Kern for an entire week. His proposed schedule broke up thatweek with an additional visit. Italso required the partiesto exchange Autumn as many as 16 times per month.Ms. Jamesonproposed a schedulethat gave Mr. Kern one overnightvisit and one evening visit each week. She testified that they used that schedule sometime between August 2008 and July 2009 and that it workedwell. 4. The emotional needs and developmental level ofthe child Atthe time oftrial, Autumn was several months from beginningkindergarten. The parties disputed how well she had adjustedtothe currentresidential schedule. Mr. Kern testified that Autumn had adapted well to the schedule and that she liked going back and forth betweentwo homes. He also stated that the only problem with the current schedule wasthat,justpriorto the seven-day absence from him, Autumnwould become withdrawn and resistant to going to preschool. His girl friend, whohe has since married, Amanda Kern, testified that Autumn understood her schedule. Ms. Jameson testified that the current schedule was not working well for Autumn. She explainedthat Autumn did notknow where she would be or who she wouldbe with from day to day. She also testifiedthat, when Autumn would return from a longvisit

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### No. 30687-9-111 In re Parentage of AutumnKern
with Mr. Kern, she was tired and cranky. As a result, Ms. Jameson avoided planning any activities for the days when Autumn returned from Mr. Kern'shouse. Ms. Jameson was also concerned that this would impact Autumn's learning when kindergarten started. 5. Each parent'spast and potential for future performance ofparenting functions, including whether aparenthas taken greaterresponsibility for performing parenting functions relating to the daily needs ofthe child Evidence showedbothparents hadperformed parenting functions in the past and could continueto perform them in the future. Mr. Kern testified thathe was Autumn'sprimary caregiver when she was an infant and that he continued to do laundry, cook, and clean for Autumn. He alsopicked up and dropped offAutumn at preschool regularly. Ms. Jameson testified that she took Autumn to doctor, dentist, and haircut appointments. She also testified that she dropped offand picked up Autumn at preschool regularly. 6. The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities Ms. Jameson testified that Autumn has a good relationship with two older halfsiblings from Ms. Jameson'spriormarriage. Although her adult half-brotherused drugs in the past, Ms. Jameson testified that he no longerused drugs currently and that she
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### No.30687·9-III In re Parentage of AutumnKern
would nottolerate drug use while he lived in herhome. Ms. Jameson also testified that Mr. Kern's mother lived nearby. Autumn visited her grandmother several times per week. Mr. Kern testified that he lives about 2.5 miles from Ms. Jameson. His father lived with him and thathis mother lived about one block away. Amanda Kern testified that she usually saw Autumn every day thatAutumn was with Mr. Kern. AmandaKern testified that she had two children, but did not indicate whetherthey had a relationship with Autumn. 7. The relative strength, nature, and stability ofthe child'srelationship with each parent There was no dispute that Autumn had a strong and stable relationship with both parents. 

### B. The Court's Ruling The trial court found that "Autumn seems to be doing pretty well. She is nota messed up kidby any means, at least as far as 1cantell." Clerk's Papers (CP) at 231. The courtthen explained that its goal was to create a schedule thatwill work for Autumn andthe parties for the next 13 years. 

### It explained that, "I try to apply in these cases, within the boundaries ofthe applicable statutory framework,
...to come up with aplan which is, above all, practical, realistic, [and] predictable." CP at 234. 

### 6No.30687-9-III In re Parentage of AutumnKern
The courtthen commented on theparents' work schedules and created a schedule based on those. The trial courtnoted that Mr. Kern typically has two weekends offevery month and most Wednesdays off. It then awarded Mr. Kern residential time two weekends permonth and an overnight visit every Wednesday. The court also ruled that 

### Mr. Kern could have visitation from Friday to Sunday or Saturday to Monday once per month ifhe used a Kelly day for an additional day off. The courtnoted that the day ofthe mid-weekvisit could change ifMr. Kern's work schedule changed. The court also awarded each parenttwoweeks ofvacation with Autumn. The courtdid not file written findings offact. 

### Mr. Kern moved for reconsideration andthe trial court denied the motion. Mr. Kern appeals. ANALYSIS Review of Findings. Ms. Jameson argues that the trial court should be affirmed because it did not abuse its discretion when it denied Mr. Kern's motion for reconsideration. FromMr. Kern's brief, however, it is clear that he seeks review ofthe findings underlying the final parentingplanrather than the order denying his motion for reconsideration. Ms. Jameson also argues that Mr. Kern did not file his appeal until more than 30


### 7No. 30687-9-111 In re Parentage of Autumn Kern days after the court entered its findings. According to Ms. Jameson, Mr. Kern has not timely appealed the findings. Designating an order on a motion for reconsideration brings up the finaljudgment for review. RAP 2.4(c). Additionally, appeal ofa finaljudgment is timely ifthe appellant appeals within 30 days ofentry ofan order on a motion for reconsideration. RAP 5.2(e). Therefore, Mr. Kern has timely filed an appeal ofthe findings underlying the final parentingplan. Statutory Factors. We review the court's ruling on a residential schedule for an abuse ofdiscretion. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). A court abuses its discretion when it bases its decision on untenable grounds or
reasons. Id. When a court determines a child's residential schedule, the court must consider the child's best interest. See RCW 26.09.002. When the child's best interest does not require that one parent's residential time is limited, the court must consider seven statutory factors. RCW 26.09.l87(3)(a). Those factors are: (i) The relative strength, nature, and stability ofthe child's relationship with eachparent; (ii) The agreements ofthe parties, provided they were entered into knowingly and voluntarily; (iii) Each parent's past and potential for future performance ofparenting functions as defined in
...RCW 26.09.004(3), including whether a 8

### No. 30687-9-III In re Parentage

## 0/ AutumnKern 

### parenthas taken greater responsibility for performingparenting functions relating to the daily needs ofthe child; (iv) The emotional needs and developmental level ofthe child; (v) The child's relationship with siblings and with other significant adults, as well as the child's involvementwith his orherphysical surroundings, school, or other significant activities; (vi) The wishes oftheparents and the wishes ofa child who is sufficiently mature to express reasoned and independentpreferences as to his orherresidential schedule; and (vii) Eachparent's employment schedule, and shall make accommodations consistent with those schedules. RCW 26.09.187(3)(a). The first factor should be given the most weight. Id. 

### Here, there are no written findings regarding these factors. Mr. Kern argues that the record is, therefore, absent any showing that the trial court consideredthe factors. Ms. Jameson replies that there is substantial evidence to support each factor, so we should
assume that the trial court considered the factors. When thepartiespresent substantial evidence on each factor, findings specificto each factor are not required and this court may rely on the trial court's oral opinion. In re Marriage o/Croley, 

### 91 Wn.2d 288,292,588P.2d 738 (1978); In re Marriage o/Murray, 

### 28 Wn. App. 187, 189,622P.2d 1288 (1981). Absent evidence to the contrary, this court
assumes that the court considered the evidence presented. Croley, 

### 91 Wn.2d at 291. Stated differently, "the failure ofthe written findings or oral opinion to reflect any application ofthe statutory elements orto even mention the best interests ofthe child"
9No.30687·9-1II In re Parentage of AutumnKern
rebuts the presumption that the trial court considered the statutory factors. Murray, 28 Wn. App. at 189-90. Here, the parties presented substantial evidence on each factor and court's oral ruling suggested that it considered each factor. As noted, the court stated, "mypersonal standard that I try to apply in these cases, within the boundaries of the applicable statutory framework, is to try to come up with a plan which is, above all, practical, realistic, [and] predictable." CP at 234 (emphasis added). 

### It went on to say, "I think that
we can come up with something here which is probably
... not what either side would ideally like to have but at least
...serves the needs of satisfYing the statute and also being practical and predictable." CP at 237 (emphasis added). A more detailed rulingwould have been helpful, but the court's comments indicate that it consideredthe statutory framework and satisfied the statutes. This court, therefore, concludes that the trial court consideredthe evidence presented and complied with the relevant statutes. Abuse o(Discretion. Mr. Kernnext contends that the decision to reduce his residential time was contrary to the evidence and was not in Autumn'sbest interest. Essentially, Mr. Kern argues that the court incorrectly weighed the evidence at trial. However, this court will not substitute itsjudgment for that ofthe trial court by reweighing the evidence. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234


### 10No.30687-9-II1 In re Parentage of Autumn Kern (1996). The trial court did not err by assigning more weight to Ms. Jameson's testimony. She testified thatthe schedule made Autumn confused, tired, and cranky. Amanda Kern testified that, to the contrary, Autumn understood her schedule and was well adjusted. Mr. Kern also testified thatthe current schedule was problematic, notbecause it confused Autumn, but because it created too much time away from him. While eitherversion of the facts is possible, the court was entitled to accept Ms. Jameson's testimony overthe Kerns'testimony. Becausethe court consideredthe relevant law and evidence, we cannot say that its decision was against Autumn'sbest interest. Although the schedule reduced Mr. Kern's residential time, it created a workable schedule. The court did not abuse its discretion. "KellyDavs." Finally, Mr. Kern argues that the court abused its discretion by requiring him to use his Kelly days to have athree-day weekend with Autumn once per month. He contends thatthe requirementthat he use a Kelly day is arbitrary and that he should be able to use any type ofleave available to him. He also contends thatthis requirement infringes on his rightto take a two-week vacation with Autumn. He reasons that, because he must save his Kelly days for three-day weekends, he will have to use annual leave to make himselfavailable for his regular visits, and he will therefore have
11No.30687-9-II1 In re Parentage of AutumnKern
little annual leave to use for an actual vacation. The trial court was required to consider eachparent's employment schedule and make accommodations for that schedule. RCW 26.09.1 87(3)(a)(vii). Ifthe trial court considered Mr. Kern's schedule and made accommodations for it, it did not abuse its discretion. See Kovacs, 121 Wn.2d at 801 (a court abuses its discretion when itbases a decision on untenable grounds orreasons). The court'sruling shows thatit considered Mr. Kern's schedule and accommodated it. The evidence showed thatMr. Kern has 13 Kelly days each year and three weeks ofannual leave. Mr. Kern testified that, although he was not proposingthat the Kelly days be used in the residential schedule, he could use themto make himself available to Autumn. He also testified thathe could use the Kelly days any time. The trial court noted thatMr. Kern typically has two weekends offevery month and most Wednesdays off. Based onthat, the court scheduled Mr. Kern to have visits with Autumn two weekendspermonth and every Wednesday. Requiring Mr. Kernto use his Kelly days for visitation was not an abuse ofdiscretion. AttorneyFees. Ms. Jameson asks for attorney fees on the basis ofMr. Kern's intransigence and RAP 18.9. RAP 18.9(a) allows for an award offees for a party's

12No.30687-9-III In re Parentage of Autumn Kern
intentional delay, misuse ofthe rules, or frivolous appeal. The record does not support an award on eitherbasis. Ms. Jameson also seeks attorney fees pursuant to RCW 26.09.140. RCW 26.09.140provides that this court may award reasonable attorney fees after considering the financial resources ofthe parties. Bothparties have filed financial affidavits pursuant to RAP 18.1(c). After considering those, we award Ms. Jameson attorney fees on appeal. We affirm the trial court's order. A majority ofthe panel has determined this opinion will not be printed inthe Washington Appellate Reports, but 

### it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Brown, 1. Korsmo, C.J.

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